Arbitration Law and ADR - 1

Three lists are there in the Indian Constitution: Union List, State List and Concurrent List.
‘Arbitration’ is a subject matter enlisted in Concurrent List of the Constitution of India.

Arbitration is an alternative to court action (litigation) and generally, just as final and binding (unlike mediation, negotiation and conciliation, which are non-binding). The main aim of ADR is to reduce the need for the parties to go to court at all.

Arbitration is a procedure in which the parties refer a dispute to a third party rather than go to court. Arbitration is the private, judicial determination of a dispute by an independent third party. An arbitration hearing may involve the use of an individual arbitrator or a tribunal.

Unregistered arbitration agreements are valid and can be enforced for the purpose of the resolution of dispute between the parties.

In general, the arbitration agreement provides the basis for arbitration. It is defined as an agreement to submit present or future disputes to arbitration.

"Arbitration agreement" is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.

The arbitration does not deal with the matter where there is a question of law.

In ordinary contract, the obligations of the parties to each other cannot, in general, be specifically enforced and their breach results only in damage. The arbitration clause can be specifically enforced by the machinery of the arbitration acts.
The appropriate remedy for breach of agreement of arbitrate is not damages, but its enforcement.

Consensual arbitration is a dispute resolution process whereby the parties confer on one or more persons, the arbitrator(s) and the power to resolve a dispute by making a decision.

Conciliation proceedings shall commence when the other party accepts in writing the invitation to conciliate. Upon acceptance of the invitation by the other party, the required information shall be submitted by both the parties along with the registration fees.

An arbitration agreement is considered to be in writing if it is contained in a document signed by the parties; an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement; or an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other

Under the Arbitration and Conciliation Act, 1996, all the above types of awards are recognised.

A quasi-judicial body is an entity such as an arbitrator or tribunal board, generally of a public administrative agency, which has powers and procedures resembling those of a court of law or judge. Thus, the function of the arbitration tribunal is semi-judicial.

For the enforcement of a foreign award, it is necessary that the award has been made by the arbitral tribunal provided for in the submission to arbitration or constituted in the manner or agreed upon by the parties and in conformity with the law governing the arbitration procedure, or the enforcement of the award is not contrary to the public policy or the law of India.

An arbitral award may be set aside by the court if the party making the application furnishes proof that a party was under some incapacity or if the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law in force for the time being, or the party making the application was not given proper notice of the appointment.